Archived decisions

    Hampshire County Council

    Regulatory Committee Item 8

    27 May 2007

    Application of s.67(3)(a) Natural Environment and Rural Communities Act 2006 to claims for byways open to all traffic

    Report of the Chief Executive and Director of Recreation and Heritage

    Contact: Elizabeth Ellam, extn 3731; elizabeth.[email protected], or

    Alex Lewis, extn. 6044; [email protected]

    NATURAL ENVIRONMENT AND RURAL COMMUNITIES ACT 2006

    67. Ending of certain existing unrecorded public rights of way

    (1) An existing public right of way for mechanically propelled vehicles is extinguished if it is over a way which, immediately before commencement -

    (a) was not shown in a definitive map and statement, or

    (b) was shown in a definitive map and statement only as a footpath, bridleway or restricted byway.

      But this is subject to subsections (2) to (8)

    (2) Subsection (1) does not apply to an existing public right of way if -

    (a) it is over a way whose main lawful use by the public during the period of 5 years ending with commencement was use for mechanically propelled vehicles,

    (b) immediately before commencement it was not shown in a definitive map and statement but was shown in a list required to be kept under section 36(6) of the Highways Act 1980 (c.66) (list of highways maintainable at public expense),

    (c) it was created (by an enactment or instrument or otherwise) on terms that expressly provide for it to be a right of way for mechanically propelled vehicles,

    (d) it was created by the construction, in exercise of powers conferred by virtue of any enactment, of a road intended to be used by such vehicles, or

    (e) it was created by virtue of use by such vehicles during a period ending before 1st December 1930.

    (3) Subsection (1) does not apply to an existing public right of way over a way if -

    (a) before the relevant date, an application was made under section 53(5) of the Wildlife and Countryside Act 1981 for an order making modifications to the definitive map and statement so as to show the way as a byway open to all traffic

    (b) before commencement, the surveying authority has made a determination under paragraph 3 of Schedule 14 to the 1981 Act in respect of such an application, or

    (c) before commencement, a person with an interest in land has made such an application and, immediately before commencement, use of the way for mechanically propelled vehicles

      (i) was reasonably necessary to enable that person to obtain access to the land, or (ii) would have been reasonably necessary to enable that person to obtain access to a part of that land if he had had an interest in that part only.

      "The relevant date" means, in relation to England, 20th January 2005

1. Summary

1.1 Six reports on the agenda for this Committee deal with applications under s.53(5) Wildlife and Countryside Act 1981 for the addition to the definitive map of byways open to all traffic. In respect of any such application that the Committee is minded to accept, the Committee first needs to consider whether the motorised vehicular element of the public vehicular right of way has been extinguished by section 67(1) of the Natural Environment and Rural Communities Act 2006 (`NERC'), or whether it is protected by any of the eight exceptions contained in sections 67(2) and (3) of the Act. In respect of the six following reports, the exception in s.67(3)(a) may apply, because each was the subject of an application under s.53(5) Wildlife and Countryside Act 1981 made before 20th January 2005. This report is intended to assist members in the consideration of that matter, and is submitted as a separate item merely to prevent the unnecessary repetition of the issues in each of the following reports.

1.2 All the applications were made to the County Council before 20 January 2005 and on the face of it, motor vehicular rights would appear to be exempt from extinguishment on the grounds set out in s.67(3)(a) of the Act (although other grounds might also apply). Officers have been invited to accept a contrary view expressed in a recent opinion given by George Laurence QC and Ross Crail, of Counsel, in which it is argued that applications in the form of those to be considered at this meeting do not fall within s.67(3)(a). The Department of Food and Rural Affairs (Defra) has also had sight of the opinion and subsequently issued guidance to the effect that such applications should be treated as validly made and do fall within section 67(3)(a). This report seeks to advise members on the issues relevant to their consideration of this controversial issue.

2. Recommendation

    That this Committee notes the points made by Counsel and the response of Defra in considering the applications for byway on the agenda for this meeting, and gives weight to the points made by officers in favour of the approach taken by Defra.

3. The Natural Environment and Rural Communities Act 2006

3.1 Part 6 of this Act contains the Government's response to public concern about the use of motorised vehicles on rights of way. It achieves its objective in a very unusual and wide-sweeping way: by extinguishing public rights of way for mechanically propelled vehicles over all ways which are not shown on the definitive map as byways open to all traffic, unless the way in question falls within one of a number of exceptions contained in sub-sections 67(2) and (3). These sub-sections are set out above. They are intended to maintain public rights of way for motor vehicles over the country's usual road network, whilst preventing such use over minor roads and rights of way. The exceptions are also intended to preserve motor vehicular rights of way over paths that were the subject of applications for byways before the NERC bill was laid before Parliament.

4. Section 67(3)(a)

4.1 The effect of this sub-section is to provide that a public right of way for mechanically propelled vehicles will not be extinguished over any way which is the subject of an application for a byway open to all traffic made under s.53(5) Wildlife and Countryside Act 1981 before 20th January 2005. Section 67(6) provides that the application is `made' when it is made in accordance with paragraph 1 of Schedule 14 to that Act.

4.2 Paragraph 1 of Schedule 14 is as follows:

      "An application shall be made in the prescribed form and shall be accompanied by:

        (a) a map drawn to the prescribed scale and showing the way or ways to which the application relates and

        (b) copies of any documentary evidence (including statements of witnesses) which the applicant wishes to adduce in support of the application."

4.3 The Wildlife and Countryside (Definitive Maps and Statements) Regulations 1993 include a model form of application, and direct that applications should be in that form or a form substantially to the like effect. The prescribed form contains the words

        "I/We attach copies of the following documentary evidence (including statements of witnesses) in support of the application:

        List of Documents",

      which reinforces the requirement of paragraph 1 for the production of copies of any documents relied on in support of the application. The Regulations require the map accompanying the application to be at a scale not less than 1;25,000.

5. Counsels' opinion

5.1 Counsels' opinion was sought by the Green Lanes Protection Group (GLPG), a group of 14 organisations, including the Ramblers' Association and the Campaign to Protect Rural England, which was formed to support the NERC bill through Parliament. Counsels' opinion considers a number of different matters relating to NERC and only part of it relates to the exception contained in s.67(3)(a). The opinion runs to some 30 pages of quite complex legal argument and, for that reason is not copied in its entirety here. It can be inspected at the rights of way offices or copies can be provided on request.

5.2 The view taken by Counsel on this particular issue is that "unless and until the applicant has provided the surveying authority with an itemised list of documents and a set of copies of the listed documents, he cannot ... be regarded as having complied with the statute". Counsel do recognise that it is not always practicable to obtain copies of old or fragile documents, and that some documents may not be available, but consider that copies should be provided `whenever reasonably possible'. They do not consider that an application form "accompanied by a detailed exposition of evidence sources and what they are said to indicate, but no copy documents" achieves compliance with the 1981 legislation.

5.3 Counsel do not consider that submission of copy documents after 20 January 2005 can cure an otherwise invalid application, although the position is less certain if the copy documents were submitted after an initial application, but before 20 January 2005. These further points are not relevant to the applications before this Committee: officers acknowledge that there are documents in each case which could reasonably have been provided by the applicants, but which have not been provided at any stage.

6. The Applications

6.1 The applications before this Committee were made by documents substantially in the prescribed form and (unless indicated otherwise in the relevant report) with a map at the prescribed scale, but in each case the applicant has not provided copies of each (or, in most cases, any) of the documents which are relied on in support. Instead, the applicants have produced a list, or schedule, setting out the different documents which they consider support the claim, explaining in most cases the nature and effect of the document, and in relevant cases containing an extract from, or précis of, the significant parts of the original document.

6.2 For a number of years officers have been willing to accept applications in this form, because they consider that the applications comply with the spirit of paragraph 1, in that the list of documents or schedule makes clear the strength of the case and the nature of the documents relied on in support. In fact, officers have found this form of application to be informative and helpful. Like Counsel, officers recognise that it is not always possible to obtain copies of archive material. They also consider that it is not always reasonable to expect an applicant to bear the cost of reproduction of a significant number of documents when the applicant, is seeking to have a public right of way recognised. To insist upon the production of copy documents might encourage applicants to disclose only a small part of the relevant evidence, thereby distorting the strength of the application. In any event, officers already have access to copies of many of the usual sources of evidence and where evidence consists of new, or unfamiliar, documents officers need to examine the original documents themselves, rather than rely on copies provided by an applicant.

6.3 Although the requirement to produce copies of documents with an application has been on the statute book since 1981, the form of the application has attracted very little attention or scrutiny in the courts. This is probably because the ultimate outcome of the application did not depend on the way the application was made: only the evidence could determine that. An application compliant with Schedule 14 would give the applicant some form of priority in the workload of the surveying authority (in recognition of the authority's duty to investigate the claim as soon as reasonably practicable) and also gives the applicant two rights of appeal (against non-determination, or against a refusal to make an order). A failure to comply with Schedule 14 has, in effect, been the applicant's problem, not that of the authority or the public, and prior to the enactment of NERC it could have been be cured, if necessary, by a subsequent complete or corrected application. Applications that do not include copies of all documents have been treated as if they were validly made and applicants have become used to submitting applications without copy documents and having them accepted by the County Council without demur. At the time the subject applications were made, nothing can have made the applicants aware that a future change in the law might make the failure to include copy documents fatal to their claim.

6.4 Now that the ultimate outcome of a such an application (i.e. byway open to all traffic or restricted byway) can depend on whether the application complies with paragraph 1 the form of applications has come under closer scrutiny.

7. The view of Defra

7.1 Although we believe that the material and examples sent to Counsel originate largely (but probably not exclusively) from Hampshire the issue has wider implications because Hampshire will not be the only authority in the habit of accepting applications which do not include copy documents. A copy of Counsel's opinion was therefore sent to Defra by GLPG. Officers have also sent to Defra an example of one of the byway applications described above. Defra has considered both, and its Head of Rights of Way Policy and Legislation has issued a letter on the matter to surveying authorities (copy annexed). Defra considers that an application accompanied by a list, or summary analysis, of documentary evidence sufficient to make a credible case for an map modification order for byway is compliant with paragraph 1 of Schedule 14 to the Wildlife and Countryside Act 1981 (and thus the rights over each way attract exemption under s.67(3)(a) of NERC). In its view, it is not necessary for the application to include copies of all, or any documents relied on before it is compliant with paragraph 1.

8. Officers' advice

8.1 Officers are unable to advise this Committee which of the two different approaches, taken by GLPG and Defra respectively, is the right one. This is comparatively new legislation, and the courts have yet to offer any judicial guidance on the correct way to interpret s.67(3)(a) of NERC and paragraph 1 of Schedule 14 to the 1981 Act. It is open to members to take either approach. The GLPG approach would result in the extinguishment of a public right of way with motor vehicles over the ways in question (unless one of the other exceptions in NERC applies) and the recording of such ways, at most, as restricted byways. The approach taken by Defra could result in the recording of byways open to all traffic, but the County Council's existing traffic management powers could be used to restrict or prohibit use of motor vehicles on ways where motorised vehicular use is considered inappropriate. Our existing policy presumes that a traffic regulation order will be made where the way in question is has not been in regular use by motor vehicles over the previous twenty years.

8.2 Members should be aware that this Committee's approach will affect other applications on the current waiting list for map modification orders, regardless of whether an exemption under s.67(3) NERC is applicable. Each application needs to be considered separately, but many follow a similar pattern to the applications to be considered at this meeting: they contain a summary or précis of the evidence, rather than copies of each document relied on. There is therefore a need for the County Council to be consistent in its approach and, if this Committee decides to treat the applications as though they do not comply with paragraph 1, officers may need to reject as many as 150 applications on the current list and require them to be re-submitted, with copies of each document relied on by the applicant. The ultimate outcome of most of these cases will not be affected by such action, but officers need to apply Members' decisions consistently to all applications.

8.3 Officers are reluctant to take the view that applications before this Committee are not validly made, for the following reasons;

    (a) at the time the applications were made it was our normal practice to treat applications that did not include copy documents as validly made. Applicants were not put on notice that copy documents would be required and it would be unfair of Hampshire County Council to revise its requirements when it is too late for an applicant to remedy the matter;

    (b) the applications complied with the spirit of paragraph 1 of Schedule 14 in that they made clear the nature and strength of the evidence in support of the application;

    (c) Officers believe that the courts would be reluctant to construe paragraph 1 as narrowly as the GLPG view requires when, at the time the applications were made, the final outcome of the application did not depend on the form of the application. In effect NERC acts retrospectively on applications made some years before the new legislation was laid before Parliament and this could cause prejudice to the applicants and the public if paragraph 1 is construed narrowly;

    (d) it is unlikely that the owners of the land affected by the applications have been prejudiced by the failure to supply copy documents, because officers consult landowners that are known to them (and some adjoining landowners) before the application is determined by this Committee and landowners are provided with a draft of the relevant report before it is finalised. It is made known to any that wish to enter into a dialogue with officers that they may inspect the evidence that has been examined, including any copy documents on file;

    (e) any legitimate, but inappropriate, use by motor vehicles can be controlled by use of Traffic Regulation Orders. It is not necessary to take the GLPG's approach in order to prevent such use; and

    (f) it is the public who are now prejudiced by any failure of the applicant to comply with paragraph 1, because they will have lost rights to which they were entitled. Given that it is the duty of the highway authority to assert and protect the rights of the public, until there is judicial guidance on this matter any doubt should be construed in favour of the public, not against their interests.

9. Conclusion

    Each report will deal briefly with the other issues pertinent to the application it considers. Members are asked to note the arguments made by GLPG and by Defra and take into account the views of officers when considering whether any application for byway open to all traffic before this Committee attracts exemption under s.67(3)(a) of NERC.

Section 100D - Local Government Act 1972 - background papers

There are no documents which disclose facts or matters on which this report, or an important part of it, is based and has been relied upon to a material extent in the preparation of this report

other than (1) published works and (2) documents which disclose exempt or confidential information as defined in the Act.

19/06/2007